March 11, 2009

IP: Social and Cultural Theory (Madhavi Sunder)

Ah … participatory culture! We are midstream in
our week-long mobblog and I am overjoyed by the thoughtful contributions,
diverse disciplinary perspectives, critiques, and sage advice being offered.

On Monday I raised these questions: Do we need to
expand the theoretical framework for intellectual property beyond a narrow
economic analysis to include social and cultural theory? Why has there been
resistance to social and cultural accounts of this law? Despite the resistance,
are such approaches in fact emerging, and if so, why?

The answers thus far are illuminating,
refreshing, and suggest good reasons for hope that our global intellectual
property landscape is indeed headed for an era of progressive reform.

First, our “outsider” guest blogger, Mario
Biagioli from Harvard’s Department of the History of Science, informs us
that for those approaching intellectual property from outside the law (which is
a great deal many folks whose analyses of IP have been very important to
contemporary understanding), the economic theory of intellectual property is by
no means either dominant or a given. His helpful intervention first helps to
localize our debate – or at least my initial claim – as one about American legal
scholarship of intellectual property, predominantly. Second, in highlighting
that the economic approach is not “natural”, he shows that this law and theory
indeed “could be constituted very differently” than their current form. I would
simply add, and hope it is not taken as a parochial defense of our legal field,
that plural approaches to IP need not only come from outside the law. There
have been and continue to be broader approaches within legal scholarship -- Pam
Samuelson’s work highlighting IP’s concern for access to knowledge, Neil Netanel’s
conception of copyright’s central role in a democratic society, and William
Fisher’s utopian vision of intellectual property are just a few examples. In
her post Rochelle Dreyfuss mentions many more contemporary examples. The
goal, as Rochelle herself points out, is to recognize this plurality and to
perhaps even try to capture these contributions in some sort of broad cultural
and social frame.

I think the most important point Mario raises is
that this debate over theory matters
because our theories do far more than simply describe the world. The theories
take on lives of their own and direct (or, as Mario says, “perform”) our world,
making it in a particular image. If our theory of culture is one of tradition,
with powerful elites as the drivers and main contributors of culture while the
masses passively receive it, then this will be the culture we eventually will
come to inhabit, technology notwithstanding. Elsewhere I have critiqued law for
often adopting this “cultural survival” approach, where law’s role is to
preserve stable meanings and authority against dissent and dilution. A new
paper by Barton Beebe analogizing IP law to sumptuary law similarly argues that
intellectual property laws problematically enforce status hierarchies and
distinctions. I have urged instead for legal decision-makers to recognize—and
then facilitate—the value of cultural dissent, or plural and participatory
culture.

Rob Merges is his second post in this
week’s debate suggests that while participatory culture is important, we may
not need law to promote it. Rob is optimistic that markets will facilitate such
participation, offering enhanced tools for users to make culture themselves if
this is indeed what the public demands. Moreover, Rob suggests that even where
copyright owners have rights to exclude the public from using their works, high
enforcement costs will mean that many users will be able to make use of others’
copyrights without either permission or payment. Rob seeks to justify the current
distribution of entitlements favoring professional creators using a range of
arguments, from incentives to Lockean labor theory.

But we could argue the importance of law putting
its weight equally on the side of those who would dissent from cultural
authorities, or those who seek greater autonomy to play and share in cultural
communities, in order to actively balance competing claims and interests.
Cultural authorities already have the force of tradition and market power
supporting them; excessive legal authority to suppress dilution and change may
be overkill. Just as the First Amendment recognizes the importance of political
dissent, intellectual property law should acknowledge the importance of
cultural dissent, that is, plurality within cultural spaces. Henry Jenkins, for
example, describes how young children learn critical thinking, writing, and
reading skills by their active engagement in fantasy worlds such as Harry
Potter. Furthermore, the "Obama Effect" already noted by some scholars, showing that
performance gaps between black and white students may be closing with the
President’s election just months ago, suggests the political and social
importance of diverse and positive cultural representations—even if that comes
only from writing oneself into the stories that dominate our lives. In short, a
host of arguments can be offered—and it is to this task that I turn in my
book—to make the case not just for toleration of, but full-fledged legal
support for more democratic cultural participation.

My colleague at the University of Chicago, Omri Ben-Shahar,
has offered an eloquent and persuasive intervention on how cultural theory can
usefully complement economic theory. As Omri points out, there is little wrong
with the well-intentioned goal of economic analysis: maximizing the social
welfare. But as Omri himself admits, we need input from different fields as to
just what constitutes social welfare, and how conceptions of welfare change
over time, in light of new technologies and social relations. “Economics as a
discipline cannot determine what goods or activities provide value to
individuals,” Omri writes, graciously adding, “It welcomes any insight from
other disciplines regarding sources of value, including insights from cultural
perspectives.” Seen in this light, we need cultural theory from Henry Jenkins about fan fiction
communities, insights from Science and Technology Studies (STS), and Eric Von
Hippel’s management theory recognizing the democratization of innovation to
help us appreciate why cultural participation is just as if not even more
important than cultural consumption for individual well-being. Cultural and
social theories illuminate the myriad effects of intellectual property law on
human rights, democracy, and development. Without fuller answers to these
questions how can we determine how much intellectual property is too much?

Omri asks why I mentioned Disney’s
appropriation of hunchbacks and mermaids from the public domain at the end of
my last post. Did I mean to imply that that Disney added no value, or is not
deserving of great remuneration for creating the classic films and stories
generations have come to love? Not at all. Rather, my point was to highlight that
all culture is derivative in order to complicate our romantic notions of
authorship and originality that dominate intellectual property law and which at
times have crept into this very debate (for example, when we differentiate
professional creators of “original” work from remixers whose products are
merely “derivative.”) In short, cultural theory can improve our descriptive
account of how culture is created, as well as offer a prescriptive account that
recognizes the importance of incentives, recognition, livelihood,
participation, and shared meaning.

Rochelle Dreyfuss agrees with the broad
project laid out this week, saying, “it's high time to think more
systematically about crafting intellectual property law in a manner that takes
account of other values.” But more importantly, she is very helpfully concerned
about the best strategy for achieving
this goal, warning against starting a high-pitched, internal cat fight between
economic and cultural theorists in IP, especially when the political and market
players in the field are so powerful. She warns that divided, we will fail as
scholars to help to promote the general welfare and these very plural values
that we seek to promote.

Rochelle has stated that international
scholarship in IP is one area that has already sought to incorporate broader
views of this law; her new book with Graeme Dinwoodie is an example. I look
forward to further consideration of IP and economic development in these last
two days.

Comments

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I'm confused whether this cultural critique applies to patent law as well as copyright and trademark law. A remix of the Little Mermaid on Youtube clearly seems to be a contribution to the culture, an improved golf ball less so.